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Marine Renewable Energy Legal Framework in Malaysia: a Way Forward

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Marine Renewable Energy Legal Framework in Malaysia: a Way Forward Journal of Sustainability Science and Management eISSN: 2672-7226 Volume 15 Number 3, April 2020: 101-112 © Penerbit UMT MARINE RENEWABLE ENERGY LEGAL FRAMEWORK IN MALAYSIA: A WAY FORWARD FARAHDILAH GHAZALI*1 AND MAIZATUN MUSTAFA2 1Institute of Oceanagraphy and Environment, Universiti Malaysia Terengganu, 21030 Kuala Nerus, Terengganu, Malaysia. 2Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, Jalan Gombak, 53100 Selangor, Malaysia. *Corresponding author: [email protected] Abstract: Being a nation that is surrounded by seas, Malaysia is seen to have the potential to harness energy from the sea. At present, renewable energy is already considered to be an important focus within the country’s low emissions strategy particularly through the enforcement of the Renewable Energy Act 2011. However, the scope of this Act is inadequate to include energy from the sea as it is confined only to eligible renewable energy sources under the feed-in tariff scheme. The objective of this paper is to highlight the legal and regulatory requirements governing marine renewable energy development in Malaysia particularly in sustainably capturing tidal and wave potential. As an alternative, this paper explores the viability of ocean energy as another source of renewable energy. The paper adopts a doctrinal approach and suggests some measures within the law and policy which when considered would help towards the development of marine renewable energy. The authors recommend for Malaysia to adopt the Nova Scotia’s legal framework. This model could well be applied provided that there is a strong political will and policy drivers to achieve the national objectives in accelerating renewable energy sector, particularly from marine sources. Keywords: South China Sea, environment, tidal energy, wave energy, and law of the sea. Introduction player for mitigating climate change impacts, The oil crisis in the United States in 1973 has enhancing energy security, empowering the surely awakened many countries to secure their economic sector, and promoting sustainable energy supply. Coupled with the scarcity of fossil development (Dolman & Simmonds, 2010; fuels, climate change impacts and mounting Ghazali et al., 2018). energy demand for industrialization, several While Malaysia progressively developed, actions were implemented to respond to these there is great pressure for this country to pursue issues. A preliminary measure was undertaken alternative energy in order to safeguard its by nations to deal with these issues and the depleting energy supply. Through the Seventh international conventions such as the United Malaysia Plan (1996-2000), the government has Nations Framework Convention on Climate expressed its concern over energy security and Change 1992 (UNFCCC), the Kyoto Protocol has started to improve energy efficiency (EE) and to the UNFCCC and the Paris Agreement were to promote non-conventional sources, such as adopted. Basically, these legal instruments were solar and hybrid systems that support electricity intended to promote climate change mitigation access for rural populations. Malaysia’s and as such, energy and sustainable development commitment to developing RE for electricity strategies were inextricably linked to these aims. generation was mainly entrenched by efforts to One of the important facets of these instruments reduce dependency on fossil fuels, to resolve the is renewable energy (hereinafter referred as increasing pattern of energy demands as well as “RE”) generation which is considered to be a key to reduce greenhouse gas (GHG) emissions. Farahdilah Ghazali and Maizatun Mustafa 102 Figure 1: Conceptual Framework for Renewable Development in Malaysia This is consistent with growing issues both onshore and offshore that can be exploited regarding climate change and energy security for electricity generation. that the world’s nations as reflected in Figure 1. Despite increasing social issues, Malaysia in The National Policy on Climate Change 2009 recent years, has seen the successful development Malaysia indicated one measure to combat of renewable energy sector, particularly marine climate issues, which is through RE deployment renewable energy, and has addressed problems especially in the power sector due to the reason on unemployment and youth migration. For that RE sources are environmentally friendly instance, in Scotland, this sector provides the compared to the fossil fuels. This Policy's opportunity to explore a new and relatively target is in line with Malaysia’s pledges to cut unexplored area of economy. This breakthrough carbon intensity by up to 45 percent by 2030, in is expected to lead towards an effective ocean accordance with the Paris Agreement. and coastal development and more activities In the context of Malaysia, achieving are anticipated in future (Johnson et al., the RE targets and carbon reduction through 2013). Environmental and energy security are renewables-based electricity generation requires important aspects that need to be considered in a number of efforts including the need to amend developing the marine renewable energy policy. the scope of the current law, the Renewable Nevertheless, Allan et al. (2014) presented Energy Act 2011 to enable it to incorporate other that the impacts on the country’s economy eligible sources under the FiT scheme including are of extra importance in developing marine tidal and wave energies. Malaysia, located renewable energy. It appears in their study that near to the Equator and the South China Sea, the Scottish economy, especially in the coastal comprises of two noncontiguous regions which regions, has been enriched. Therefore, it is of make up the Peninsula and East Malaysia to be critical importance to consider relocation and almost surrounded by water, except near the mobility of population and employment (Allan border of Thailand in the north and the border of et al., 2014). Kalimantan, Indonesia in East Malaysia. Based In an attempt to quantify the effects from on these geographical and topographical factors, energy insecurity and global carbon emissions, Malaysia has an abundance of natural resources, more sophisticated technologies have been Journal of Sustainability Science and Management Volume 15 Number 3, April 2020: 101-112 MARINE RENEWABLE ENERGY LEGAL FRAMEWORK IN MALAYSIA: A WAY FORWARD 103 developed to maximize marine RE potentials the first column of the Schedule” and as defined which include from thermal and salinity in the RE Act 2011. gradients in the sea and bioenergy from algae. The National Renewable Energy Policy and Incorporating advancement into the existing Action Plan were promulgated in 2009 to resolve marine RE sector is another direction of the failure of not achieving the target of 5 percent research and development to commercialize renewable energy within the energy mix. The marine RE sector. Such advancement should crucial part of this policy has been to demonstrate soon provide the power to deal with cost, energy the importance of utilizing renewable resources, storage, material and informatics as well as especially to ensure a better environment in the maritime governance. Much of the potential of future. As the policy has indicated several flaws the marine RE remains unexplored and warrant of previous RE programme in Malaysia, the ongoing efforts to demand for a cost-effective Renewable Energy Act 2011 was subsequently and reliable techniques to supply human’s needs enacted to enable renewable energy generation through ocean energy (Borthwick, 2016). This as accommodated in a feed-in tariff (hereinafter study adopted a doctrinal approach through referred as the “FiT”) mechanism. As to date, examination on related legislation and expected the schedule of the Renewable Energy Act 2011 to deliver an overview of the prospect as well as only provides the quota for FiT for biomass, challenges pertaining to marine RE development biogas, mini-hydro, solar photovoltaic and in Malaysia. geothermal. Table 1 shows the power generation in Malaysia according to RE sources from 2015 Renewable Energy Development in Malaysia to 2018. Until 2018, there is no power generated from the geothermal energy, though it has been Prior to the enactment of the Renewable Energy included into the RE Act, as an eligible source Act 2011, Malaysia had a long history of for FiT since 2015. Needless to say that all the renewables electricity generation programmes. listed REs in the Renewable Energy Act 2011 Unfortunately, failure of one of the programmes are only limited to inland energy sources. Since namely, Small Renewable Energy Project (SREP) Malaysia is a maritime nation surrounded by prior to 2009, has brought enormous reforms sea, there is the potential to tap energy from the into the country’s energy sector (Sovacool & ocean. Nevertheless, Chong and Lam (2013) Drupady, 2011). The Energy Commission pointed toward Malaysia’s limited effort to Act 2001 (Act 610) defines renewable energy promote marine RE in the current RE law and as being “energy which is not depleted when policy. used, and includes energy obtained from energy sources such as biomass, hydropower, solar power, geothermal power, wind power, waves, Potential of Marine Renewable Energy in and tides.” As such, has abundant sources which Malaysia were listed by the Energy Commission Act 2001, According to Chong and Lam (2013) there are yet have not been fully exploited. The renewable several types of energy that could possibly be resources are, “the recurring and non-depleting
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